Carl Schmitt might have been amused by the criticism John Kerry has received for declining to characterize operations against ISIS as “war”:
U.S. Secretary of State John Kerry on Thursday would not say the United States is at war with ISIS, telling CNN in an interview that the administration’s strategy includes “many different things that one doesn’t think of normally in context of war.”
“What we are doing is engaging in a very significant counterterrorism operation,” Kerry told CNN’s Elise Labott in Jeddah, Saudi Arabia. “It’s going to go on for some period of time. If somebody wants to think about it as being a war with ISIL, they can do so, but the fact is it’s a major counterterrorism operation that will have many different moving parts.”
As Schmitt understood, and as he predicted early in our era of American global ascendancy, the success of the longstanding and characteristically American campaign for the criminalization of war, which among other things seems to erase the traditional distinction between just enemy (justus hostis) and enemy of humankind (hostis humani generis), makes it difficult for political officials to distinguish consistently between different types of combatant and combat. Trends in jurisprudence – such as the insistence on applying Geneva rules to combatants out of uniform and representing no recognized state – have increased the difficulty, as have trends in popular culture working from another direction: In an age of the war on cancer and the war on drugs and the war on Christmas and the war on women and the war on terror, too, it seems a little ridiculous to attempt to reserve the word only for a phenomenon that either no longer exists or is illegal, and either way no longer can take the same form that the framers of the American Constitution had in mind when they gave Congress sole power to “declare war” – or when earlier their revolutionary precursors, hoping to upgrade their insurrection in the eyes of the European powers including their adversaries, had sought to create a recognizable state power with conventional military arm. That American Constitutional Conservatives are fond of treating Article I, Section 8, Clause 11, as sacrosanct rather than effectively obsolete contributes further to disorientations that extend well beyond the political right. Fierce adversaries of the Bush Administration and all the legal horses it rode in on, writing in the best New York newspapers and reviews, belittle the putative Obama Administration claim that a president has the right to “declare war,” precisely what Kerry disclaims, and even though the U.S. has not “declared war” since 1942 – the last opportunity prior to the institution of the new regime of international law.
From the older perspective, we are not engaging in war on IS/ISIS/ISIL/Daesh, not for lack of will or of lethal intention or of bullets and bombs, but for the same reason we do not really make war on cancer, drugs, women, or Christmas: Cancer is not a nation-state. It has no legitimacy. It is not available for negotiation. It doesn’t agree to treat its captives well, or to do anything else. The confusion over what to call Daesh somewhat reflects the same problem, or is consistent with it: The inability to decide on a single name for ISIS/ISIL/IS reflects a refusal to “recognize” it, which means to grant it “status” – i.e., “state”-hood – on its own terms, but the fact that we cannot actually recognize Daesh as an enemy on our own level does not mean that we cannot act against it, just as the followers of Admiralty Law, or of European international law, and even further back of Roman Law, were not prevented from campaigns against brigands, pirates, insurrectionists, and other outlaws, if never under the impossible objective of eliminating outlawry itself. To “make war” on IS would not just be to elevate the group and demean ourselves, but to propose alternative impossibilities: The appearance of its Caliph or perhaps his successor at a legitimated and accepted peace conference adjudicating proper claims on both sides, leading to a treaty and formal end of hostilities; or the annihilation of something which does not exist, the actual rather than aspirational Islamic State.
For us, the word “terrorist” is meant to designate the violator of universal norms in defiance of universal order, ineligible for “real” war, yet we want both to include and to exclude the terrorist in our concept, or include the terrorist on both sides at once, or be on the terrorist’s level but above it, just as we wish not to declare war ever, but rather to declare war evil, as we embark upon it or upon our rough imitation of it, criminals according to our own understanding, in more ways than one. It would be easier to laugh along with Carl’s ghost if people were not being killed. What we will do instead seems little better: snark bitterly at poor John Kerry, who may or may not be able or willing to explain himself cogently, but is not actually less cogent than his critics, who will do just what he says we can do, “think about it as being a war,” before we stagger on to the next absurdity we know as common sense.